34
KENNEDY v. THE UNITED KINGDOM JUDGMENT
RIPA, preventing calls from being put through and hoax calls were
excluded from the definition of interception (see paragraph 30 above). As
such, these activities would not fall within the remit of RIPA. The
Government further argued that there was no factual foundation for the
applicant's claims that any interception was intended to intimidate him.
b. The Court's assessment
118. It is not disputed that mail, telephone and email communications,
including those made in the context of business dealings, are covered by the
notions of “private life” and “correspondence” in Article 8 § 1.
119. The Court has consistently held in its case-law that its task is not
normally to review the relevant law and practice in abstracto, but to
determine whether the manner in which they were applied to, or affected,
the applicant gave rise to a violation of the Convention (see, inter alia,
Klass and Others, cited above, § 33; N.C. v. Italy [GC], no. 24952/94, § 56,
ECHR 2002-X; and Krone Verlag GmbH & Co. KG v. Austria (no. 4),
no. 72331/01, § 26, 9 November 2006). However, in recognition of the
particular features of secret surveillance measures and the importance of
ensuring effective control and supervision of them, the Court has permitted
general challenges to the relevant legislative regime.
120. The Court's approach to assessing whether there has been an
interference in cases raising a general complaint about secret surveillance
measures was set out in its Klass and Others judgment, cited above, §§ 34
to 38 and 41:
“34. ... The question arises in the present proceedings whether an individual is to be
deprived of the opportunity of lodging an application with the Commission because,
owing to the secrecy of the measures objected to, he cannot point to any concrete
measure specifically affecting him. In the Court's view, the effectiveness (l'effet utile)
of the Convention implies in such circumstances some possibility of having access to
the Commission. If this were not so, the efficiency of the Convention's enforcement
machinery would be materially weakened. The procedural provisions of the
Convention must, in view of the fact that the Convention and its institutions were set
up to protect the individual, be applied in a manner which serves to make the system
of individual applications efficacious.
The Court therefore accepts that an individual may, under certain conditions, claim
to be the victim of a violation occasioned by the mere existence of secret measures or
of legislation permitting secret measures, without having to allege that such measures
were in fact applied to him. The relevant conditions are to be determined in each case
according to the Convention right or rights alleged to have been infringed, the secret
character of the measures objected to, and the connection between the applicant and
those measures.
35. In the light of these considerations, it has now to be ascertained whether, by
reason of the particular legislation being challenged, the applicants can claim to be
victims ... of a violation of Article 8 ... of the Convention ...